On behalf of four transgender people from Ohio, the American Civil Liberties Union has filed suit against the state of Ohio over their policy of not allowing gender changes on birth certificates. Pointing out that the inability of trans people to change the gender marker on their birth certificate puts trans people at risk for violence and other negative consequences, the lawsuit states that “Ohio’s categorical bar stands in sharp contrast to the approach of nearly all other states and the District of Columbia, which have established processes by which transgender people can correct the gender marker on their birth certificate.”

The ACLU also points out in their suit that such a policy around birth certificates is inconsistent with the fact that Ohio currently permits citizens to change their gender markers on driver’s licenses and state ID cards. Plaintiffs in the case are Stacie Ray, Jane Doe, Ashley Breda, and Basil Argento, all of which are currently seeking to correct the gender marker on their birth certificate.

Now, if you’re anything like me, your first reaction to hearing this news was to think, “Are there really states that don’t allow people to change their gender on birth certificates?” In fact, research indicates that Ohio is one of three states that disallow this sort of change, the other two being Kansas and Tennessee.

Until recently, there was a fourth state that didn’t allow such changes — Idaho. That all changed only a few weeks ago, though, after a federal court ruled that Idaho’s previous policy of refusing to make any changes to gender markers on birth certificates unless there had been an error made at birth was unconstitutional, violating the Fourteenth Amendment’s Equal Protection clause. Indeed, an interesting line in the court’s decision in the Idaho case sheds some light on exactly how indefensible this whole policy is.

“Defendants do not defend the Constitutionality of the policy,” reads a line in the decision’s introduction. “Instead, they admit it is unconstitutional. Specifically, that it violates the Equal Protection Clause, failing minimum scrutiny under review because ‘a prohibition against changing the sex designation on the birth certificate of a transgender individual who has undergone clinically appropriate treatment to permanently change his or her sex’ bears no rational relationship to a conceivable government interest.”

Having now received an official court order to change their policy, Idaho is in the process of doing so, and will begin allowing applications for changes of gender markers on birth certificates next week. Meanwhile, in Ohio, the state Attorney General is reviewing the lawsuit, while the Ohio Department of Health has refused to comment.

Here in Virginia, it remains possible for trans people to change gender markers on their birth certificates. However, it isn’t exactly easy. While the 2016 attempt by 33rd District Delegate Dave LaRock (the new Bob Marshall?) to change Virginia’s policy to mirror that of Ohio was unsuccessful, so was the attempt this past session by 86th District Delegate Jennifer Boysko to bring Virginia birth certificate policy in line with the Commonwealth’s current policy about gender markers on drivers’ licenses. So things could definitely be better here.

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